Top Maryland court puts off mandate for lawyers at bail hearings

Ian Duncan, The Baltimore Sun

Maryland's top court on Thursday left in place a bail system it declared unconstitutional four months ago, deciding instead to hear further arguments on how to ensure that poor people have legal representation at the earliest stage of their cases.

But the next hearing on the matter — on technical issues — isn't until March 7, just a month before the state's annual legislative session comes to an end. The decision creates further uncertainty for lawmakers who had hoped to iron out a deal that would avoid the potential $30 million cost of sending public defenders to represent suspects at their first bail hearings.

"We've got a very steep hill to climb," said Sen. Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee.

The Montgomery County Democrat said that while the court decisions have given the General Assembly a chance to create a fairer pretrial system, no consensus has emerged on how to do it. He said it's more likely that lawmakers will come up with a temporary solution this year.

Maryland offers public defenders at bail review hearings held by judges, but not at the initial proceedings in which a court commissioner sets the conditions for a suspect's release or detention. The Court of Appeals has ruled in two decisions that the existing system does not honor defendants' right to counsel.

The decisions represented a long-sought win to advocates for poor people caught up in the criminal justice system, but the issue remains in legal limbo as court officials wrangle over how to put it into practice.

Based on a Court of Appeals ruling in September, Baltimore Circuit Judge Alfred Nance ordered last week that courts in the city immediately release defendants who aren't offered an attorney at their first bail hearing.

Administrative officials for the state judiciary appealed, arguing that the directive would be impossible to implement without more time to prepare. The Court of Appeals stayed Nance's order and on Thursday scheduled the March 7 oral arguments over a number of technical questions.

Michael Schatzow, an attorney for the plaintiffs in the case, had been pushing the courts and the state to act on the decision as quickly as possible.

"I'm very disappointed at yet another delay in the implementation of our clients'recognized right to counsel," said Schatzow, whose clients are a group of defendants who say their rights were violated because they did not have access to attorneys when their bails were set.

A group of judges and administrators who are defendants in the case asked the high court to review whether Nance followed proper procedure in the way he issued his order and whether his wording was precise enough.

The judges did not explain their reason for picking up the case again, nor did they spell out what will happen to Nance's order after March 7.

The attorney general's office, which is representing the judiciary, declined to comment because the case is ongoing.

Some lawmakers have held out hope that the court could review the underlying constitutional question, but the high court on Thursday only asked parties in the case for information on specific aspects of Nance's order. It did not raise any broader constitutional questions.

Advocates for change say defendants have a higher likelihood of being released on an affordable bail if they are represented by attorneys from the very first stage of their case.

In previous rulings on the case, the Court of Appeals has argued that it would be wrong to find that criminal defendants have a right and then not put that right into effect.

The judiciary began making internal changes to comply with the ruling last year, but the decision left the state facing a large bill, and the General Assembly is currently weighing options for putting it into effect.

The public defender's office estimated the annual cost of providing lawyers at initial appearances at around $30 million, and the judiciary says it would have to make changes to its facilities to accommodate them.

The court system proposed an alternate plan under which defendants would have just a single bail hearing on weekdays, resulting in a cost of about $6.5 million. The judiciary says it could implement its proposal by next January.

Its plans would also require legislative action, and two senior judges faced probing questions from lawmakers at a pair of hearings Wednesday in Annapolis.

Legislators asked whether it was fair to give some defendants two hearings and others just one, and whether eliminating commissioner hearings would lead to more suspects spending the night in jail while waiting for a judge.

Del. Kathleen M. Dumais, the vice chairwoman of the House Judiciary Committee, said that while the court ruling has revived interest in considering which people are jailed ahead of trial and which are released, actually changing the system will take time.

"There's an awful lot of work that can be done and it's going to be a multi-year process," the Montgomery County Democrat said.